RAMJIYAWAN VERMA Vs. NARCOTICS CONTROL BUREAU

JUDGEMENT

(1.) By the present appeal the Appellant challenges the judgment dated 15 th April, 2010 passed by the learned Special Judge convicting the Appellant for offence under Section 21(c) NDPS Act and the order dated 22 nd April, 2010 directing him to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1 lakh in default thereof to undergo simple imprisonment of one year.

(2.) Learned counsel for the Appellant contends that there are material contradictions in the prosecution case. Though as per the case of the prosecution 2.5 kgs of heroin was recovered from the suitcase from a cavity at the bottom side of the suitcase wherein both the packets were lying, however when the suitcase was produced before the Trial Court, the same had two cavities one at the top and the other at the bottom and each cavity had one packet lying in it. Further, the two public witnesses allegedly associated at the time of recovery in the train from the Appellant were namely Vinod Kumar and Ravi Kumar, however they have not been examined as witnesses before the Trial Court. No plausible explanation has been given as to why the public witnesses have not been examined. Further the Appellant proved on record that the said two independent witnesses of the prosecution were stock witnesses as they had deposed in favour of the NCB in NCB Vs. Kashmira Singh (Session's case No. 92/2008) and NCB Vs. Prakash (Sessions case No. 128/2008). It is further the case of prosecution that on disclosure of the Appellant, a search was conducted at his residence from where further 2.5 kgs of heroine were recovered. From the recovery 4 samples were drawn, however two samples did not contain diacetylmorphine. PW-2 the complainant in his testimony has admitted that the key of the room was with Lala Warsi. Further PW-10 the owner of the house has stated that no recovery was made in his presence. Thus, there is no evidence that the Appellant was in possession of the said room and 2.5 kgs of contraband was recovered from the conscious possession of the Appellant. As regards the recovery from suitcase in the train, no reservation chart has been exhibited to show that the Appellant booked the ticket for travel. The ticket allegedly exhibited does not show name of the Appellant and that the Appellant was travelling on the said ticket. The case of the Appellant is that he was picked up along with PW-17 & 18, however they were let off and the Appellant was implicated with the help of PW-17 & 18.

(3.) Learned counsel for the Respondent on the other hand contends that the Respondent has proved the case against the Appellant beyond reasonable doubt. Heavy recovery of contraband was made from the possession of the Appellant. In view of the Appellant having been found in possession of the contraband, the presumption under Section 54 of NDPS Act has to be raised. Further, merely because two witnesses have not been produced before the Trial Court the case of the prosecution does not get indented. There are no contradictions in the prosecution case. The cavities in the suitcase have been duly exhibited before the Trial Court. Thus, there is no merit in the present appeal and hence the same be dismissed.